I hate to tell him this, but that's their job. Scalia can cloak his jurisprudence in tradition, history, or anything else he wants, but at the end of the day he's the one deciding what tradition controls and what gets dropped by the wayside. He and Justice Brennan always had fantastic arguments in which both of them would craft this detailed tradition and history for their opinions that bore little relation to what actually happened. It was kind of like the Monty Python sketch where the characters get into an argument over whether the Battle of Trafalgar took place in Yorkshire or North Wales.

Yes, it is the justices' job to apply their personal judgements to the interpretation of the law, especially the Constitution. But their opinions should be not be subjective, i.e. based on their personal views. And drawing on the viewpoints of foreign governments to interpret the United States Constitution is simply reprehensible.

This issue would be much better resolved through the legislative process, not this sort of judicial activism.

While that is undoubtedly true at times, Steve, the argument doesn't seem to apply here. Scalia is resting his position upon statutes passed by the people's representatives. But the majority uses "the evolving standards of decency" as its guide, a guide I believe it uses improperly. And anyway, "what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?"

Discussions on this topic often lead to refrences of slavery and civil rights, noting that the majority's represenatives don't always uphold Constitutional ideals. I unfortunately don't have time to address that argument, should it go there.

At any rate, the proper role of the judiciary is an important aspect of the case, but I'm more disturbed by the reliance on international opinion and the lack of any admonishment for the Missouri court.

What's sad is that there are enough vindictive, short-sighted people in this country that such a question had to rise to the Supreme Court at all.

Think about what this country would be like if the Supreme court were a bunch of Scalias:

The South would still be segrigated. Birth control would be illegal in many states. There would be no Miranda rights. Castration of criminals would be legal. And, of course, we'd be executing people who aren't old enough to drink alcohol or vote.

I'm sure that sounds like heaven to some people here, though ... which is why the legislature at one time or another voted for all these things.

Eric: Do you believe that Supreme Court Justices aren't being at least somewhat subjective all the time? If so, read Marshall and Scalia dissents until you can figure out which one came from the NAACP lawyer and which one came from the conservative Catholic.

Josh:
And anyway, "what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?"
Article III gives them the power to act in a counter-majoritarian fashion, and the 8th Amendment requires moral judgments of them ("cruel and unusual" is clearly normative language).

Josh - no law can be interpretation-proof - "Cruel and unusual" has to be a judgement call.

So when Scalia says, ""The court thus proclaims itself sole arbiter of our nation's moral standards," he must be wrong. The constitution says it interprets the law. the law contains moral terms. it has to interpret them. it can't not do so. this is not activism.

what is cruel cannot be set in stone, and is not necessarily unaffected by material data. for example, it is sometimes asked whether X activity causes distress to Y animal. recently, i have heard new science on (a) the emotional effects on elephants of being removed from their social structure (different for males and females) and (b) whether or not fish can feel pain (possibly some can't)

thus also the following:

Simmons's attorney, Seth Waxman, said the death penalty did not deter minors, since "they weigh risks differently" to adults.

and

' "Our society views juveniles ... as categorically less culpable than the average criminal," Kennedy wrote.'

as I understand it, this is a developing area of psychological research and there is growing evidence that parts of the brain develop much later than previously supposed. children really do reason differently (i think particularly about outcomes, not 'what is right and wrong').

however, it seems to me that this point goes to the question of culpability, not sentencing or what is 'cruel'.

"Think about what this country would be like if the Supreme court were a bunch of Scalias:

The South would still be segrigated. Birth control would be illegal in many states. There would be no Miranda rights. Castration of criminals would be legal. And, of course, we'd be executing people who aren't old enough to drink alcohol or vote."

But because some things are undesirable, the conservative jurist replies, does not mean they are unconstitutional....

Eric: Do you believe that Supreme Court Justices aren't being at least somewhat subjective all the time?

The justices are human, after all, so of course they cannot completely separate their jurisprudence from their personal views. And I agree that "cruel and unusual punishment" invites a greater degree of subjectivity than "freedom of speech." But I think that reasonable people can believe that enforcing the death penalty for a particularly heinous crime committed by a 17-year-old is not "cruel and unusual." In that sense, I believe the majority has improperly substituted their views for the judgement of juries in murder cases.

Furthermore, I agree with Josh that the reliance on international opinion is more troubling than the subjectivity of "cruel and unusual."

If reference to the decisions reached by judges of foreign common law jurisdictions when they encountered a similar problem is so impermissible, would Scalia et al support the eradication of quotation from the Bible during trials? the bible's legal aspects are also the product of a foreign jurisdiction.

does scalia (basing all of legal judgements so firmly on constitution and precedent) believe that reference to foreign jurisdictions is prohibited by the constitution? or by precedent?

quite the contrary. the constitution would say that if that was what it meant.

some of scalia's judgement is such incredible nonsense:

hea says: 'words have no meaning if the views of less than 50% of the death penalty states can constitute a national consensus'

and then goes on to quote a whole load of precedent to the effect that the views of the majority of states IS relevant.

what on earth can he mean? the non death penalty states have not got a view on the death penalty for juveniles? where is it prohibited that such views can be taken into account. the fact that "% of death penalty states" has been used in the past does not mean that "% of states" cannot be referred to.

scalia effectively claims that 'logic' is proscibed by precedent.

his criticism of the reference to the 'UN convention on the rights of the child' spcifically is, however, spot on.

What I find most dubious about Scalia's Eighth Amendment views is that he has claimed on occasion that this amendment forbids only those punishments deemed "cruel and unusual" at the adoption of the amendment. This is no longer the standard the Court applies, but if I recall correctly, Scalia does subscribe to it.

I propose, then, that we repeal the Eighth Amendment--and replace it with an identically-worded amendment; call it the Eighth Prime Amendment. It would forbid all those things that we, today, consider cruel and unusual. We could even repeat this process as necessary in the future.

Thanks for the post and the link to the dissent. Is it time to appoint non-lawyers to the Court but presumably people who can think clearly, write plainly, and be coherent?

Serious question coming:

Given the fact, as discussed above, that the eight amendment is extremely vague, and there are no constitutional guidelines set out at all in terms of how to judge what is cruel and unusual, can someone please explain to me why it is inappropriate for justices to take international opinion, morality, and laws into account in a decision like this one?

Balta -

it isn't impermissable. Precedent is clear.

Balta, Scalia respond to you in the opinion. If that doesn't satisfy your appetite, he's written nseveral good books on the subject. But I suspect the opinion (part III) will suffice.

I'm well known as the "Liberal Troll" on this site.

Personally, I'm on the side of this ruling.
However, I think that if it can be proven, in an under-age murder-suspect's trial, that there was a conspiracy with an over-age accomplice, and that the under-age triggerman was chosen for the task specifically to loophole out of the death penalty, then both conspirators should be eligible for the death penalty.

I'm all for the 8th Amendment, and the respect for civilization and humanity that it represents. But people who try to use our freedoms as loopholes are the most despicable of the evil.

Same goes for law enforcement or military who render detainees to foreign governments for torture.

Many of the international opinions on which the Court based their opinion were explicitly rejected by the people's representives. Article 37 of the United Nations Convention on the Rights of the Child were accepted with the explicit reservation on capital punishment. Here 5 justices are subverting the will and power of the people.

But as Scalia noted in the opinion and elsewhere in other writings, the whole charade of appealing to international authority - particularly when that support is absent with the American people - should be rejected in principle. There is no accountability over foreign precedent, and the legal, political, and social culture of the judges and nations which influence the jurisprudence are vastly different.

When looking at abortion, the Supreme Court rightly ignores the overwhelming views and laws of the rest of the world, and they should also do so in interpreting our 8th Amendment.

Josh, are you saying that the U.S. has more liberal abortion laws than "the rest of the world"? It's not something I've thought or read a lot about and I would think that the UK, France, and Germany are just as if not more liberal than the US on abortion, but I suppose that most of the rest of the world has more restrictive abortion laws.

Eric, we are one of only six countries that allow abortion on demand until the point of viability. Here's more on world views.

If the legislature is the only entity to decide what constitutes cruel and unusual punishment, then there is no purpose in having a Consitutitional ban. If a legislature banned all guns, conservatives would be rushing to the Supreme Court for a declarataion of unconstitutionality. Of course, Clarence Thomas previously gave his stamp of approval to abusing prisoners, so his vote isn't surprising.

Those who support the death penalty for juveniles have a moral compass bent to the extreme. The blood lust for vengeance in this country is both amazing and appalling.

Support for death penalty and acknowledgment that it is not unconstitutional are two vastly different things. The S.Ct.'s job is to determine the latter.

I acknowledge that one can oppose the death penalty and still believe the court's opinion was wrong. However, morality cannot be separated from the question of whether or not the death penalty is cruel. In my view, no reasoning, thinking person could support capital punishment for juveniles. In other words, I think death penalty for juveniles suppporters are ignorant on this particular issue.

Paul said: "But because some things are undesirable, the conservative jurist replies, does not mean they are unconstitutional...."

Of course not. The fact is that the Constitution leaves massive room for interpretation. Scalia chooses to interpret the constition in a way that would allow all those horrible things I described. The majority of the court has disagreed.

I would submit that the constition can (because it has) be interpreted to permit OR deny these things. It's our choice.

That Scalia chooses to interpret it to allow them says something about Scalia, not the constitution, in my opinion.

There's plenty of room in the constition to prohibit all the evils I described -- the constition required due process, equal protection, and liberty.

These are incredibly broad terms that speak of overaching themes of justice, of fairness, of equality.

Some people want to define "due process," "equal protection" and "liberty" so narrowly as to EXCLUDE segrigrigation, denial of birth control, execution of minors, punitive castration, etc, from it's purview. That, in my opinion, is their choice, and not required by the constitution.

It's like you and me having an agreement that we'll "treat each other well," and then you smack me over the head and take my wallet. I complain that you violated our agreement; you say "uh, no ... the text of our agreement didn't say I couldn't hit you over the head and take your wallet!" Your interpretation is required by your sense of what is treating someone right, not by the text of our agreement.

In the same way, interpreting "equal protection" to permit segrigation says something about the interpreter, not the constitution.

In my view, no reasoning, thinking person could support capital punishment for juveniles.

Joel, certainly no compassionate person would support capital punishment in the case of, for a hypothetical example, a 14-year-old kid with negligent parents who was recruited by a gang and ended up shooting someone to death. But I see no reason why a person who commits capital murder on their 18th birthday should be susceptible to the death penalty whereas if they had committed that same act the day before they'd be immune to it.

To put it another way, I think there are plenty of 17-year-olds out there who are just as capable of forming the sort of premeditated murderous intentions which adults are capable of. I think a judge & jury should determine the just punishment in those cases, not 5 philosophers in Washington, D.C.

(Now, of course, there are those who think the death penalty is *always* unjust, and I think I recall that you are one of them, Joel. But for the sake of this particular argument we must assume that the death penalty is warranted at least in some occasions for adults.)

Eric insults philosophers by comparing them with hacks, top hacks of a profession that needs to be reined in. I doubt if Balta read the dissent-he saw who wrote it and spewed. This was a stupid decision and it gives Mr. Bush many more cards to play on convincing people that we would be better off with jurists, barristers, almost anything (even Judge Moore) would be better than unscholars, faceless, nameless hacks.

Eric,

Let's say that a renegade state decides that public nudity is worthy of capital punishment. Are you seriously insisting that if the legislature of that state declares that the punishment isn't cruel and unusual that the Supreme Court has no business ruling otherwise? At what point in your mind would the court ever have the power to declare a punishment cruel and unusual? If a state decides that it wants to boil someone in oil why should the judges intervene?

Yes, I oppose capital punishment in all cases. To me it sends the message that God is impotent to redeem some people.

Good point Joel. A good example of this is Wilber Rideau, a man who was sentenced to death at 19 for a horrible murder, but was never executed, and, to the dismay of death penalty advocates, recently released at age 64.

After committing a terrible murder in his teens, Rideau spent his twenties and beyond organizing efforts from prison to reach out to troubled teens and keep them from making the same mistakes he did. He spoke to high-school kids about the horrors of prison in a "scared-straight" type of program. He wrote several books about prison life. He worked to keep others from taking the path he'd taken as a teen. The mayor of the City of New Orleans awarded him its annual Certificate of Merit for Outstanding Service for his work with charities.

Death penalty advocates mentioned none of this when he was released, of course. After 45 years in prison in which he performed more public service than anyone I know, all they could think about was how Riddeau had cheated death. How he should have been killed when he was still a teen.

Never mind the fact that, by living, he probably has saved dozens of lives through his outreach to youth who were headed into lives of crime -- not only the lives of those youth, but of their victims.

In my opinion, the death penalty is about bloodlust. It's understandable bloodlust -- it's not rooted in any love of killing. Rather it's rooted in fear and hatred that can't see past terrible mistakes to the person underneath who can become what Riddeau became.

Had Riddeau been executed at age 19, those years of public service would have died with him. That's all execution does -- it eliminates the chance for a life that has gone horribly wrong to ever right itself.

I admit that I struggle to understand the moral boundaries that some conservatives believe in. In all the time that I have been commenting or posting, I had never received any significant amount of e-mail that accused me of being an atheist, murderer, or Hitler twin until I suggested that it is humane to allow people in persistent vegetative states (the Terry Schiavo case aside) to die, where there is no reasonable hope for recovery. And yet many of those same people insist that a murderer cannot spiritually recover.

My belief is that the life we are resurrected to in Christ in the here-and-now is almost as important as the afterlife. And yet, death penalty proponents would deny one aspect of the possibility of being raised in Christ. In other words, we will grant that Christ has the power to take a murderer to heaven but we deny his power to work any change now.

The idea that justice demands the death penalty is at odds with my understanding that Christ insituted a reconciling justice that is superior to "an-eye-for-an-eye", which itself was superior to what it replaced.

Jason Kuznicki says:

"What I find most dubious about Scalia's Eighth Amendment views is that he has claimed on occasion that this amendment forbids only those punishments deemed "cruel and unusual" at the adoption of the amendment. This is no longer the standard the Court applies, but if I recall correctly, Scalia does subscribe to it.

"I propose, then, that we repeal the Eighth Amendment--and replace it with an identically-worded amendment; call it the Eighth Prime Amendment. It would forbid all those things that we, today, consider cruel and unusual. We could even repeat this process as necessary in the future."

Totally unnecessary. The Constitution doesn't define all our rights. It defines minimal standards for what the government may or may not do. The Founders set a benckmark for "cruel and unusual," borrowing a legal term of the day. Think of it as a price ceiling. Legislatures are authorized to determine punishment severity up to a certain point. The Supremes (five of them) usurped that authority with this ruling.

"Think of it as a price ceiling. Legislatures are authorized to determine punishment severity up to a certain point."

To which a reasonable rejoinder might be that the Supremes have simply updated the prices for inflation.

Let's say that a renegade state decides that public nudity is worthy of capital punishment. Are you seriously insisting that if the legislature of that state declares that the punishment isn't cruel and unusual that the Supreme Court has no business ruling otherwise?

No, Joel. I never implied anything like that. Obviously, "cruel and unusual" appeals to the values of society. The overwhelming majority of Americans would consider capital punishment for crimes other than murder (and perhaps rape) to be excessive.

I think that should be the standard for SCOTUS dictating terms of criminal sentences--that a substantial majority (around 3/4, I'd say) of our society finds it to be "cruel and unusual." And as Joyner said, I do no believe we are even close to that point.

Eric,

So if 3/4 of society favors executing homosexuals (Jeremy Pierce, for one say the death penalty is God's moral standard punishment for homosexual conduct), then executing them wouldn't be cruel and unusual punishment?

Execution of homosexuals has a more than 2,500 year history. The rationale for the semitic peoples, the romans, the nazis, etc. etc. is not clear and probably cannot be ascertained in a politically correct world.

Although the example of the non-recidivist is a heartening story, anecdotal evidence is not statistically valid. One could probably counter each datapoint on one side of the curve with one on the other. Or maybe not. Maybe we should know the proportions of recidivists vs newly-minted angels.

What is imprisonment or capital punishment intended for? I submit it is to correct the fallen, and 'encourage les autres'.
Well, let's measure the results, shall we? Since I am unaware of how I might measure the 'encouragement' factor, let's see how we do on the correction, as measured by recidivism rates. What is the recidivism rate for people imprisoned for crimes that we may have considered capital? I know this: capital punishment provides a certain recidivism rate (0, the desired rate for all) for one criminal. What is the recidivism rate that will be tolerated by society - at the state or national level?

I must side with the gentleperson who wonders why one day it's a capital crime, whereas the day before it's not. I think this should be a case by case basis, rather than an age-related one. And states should get to set their own punishments for state crimes. If x is considered a capital crime by state Y, then voters of that state who disagree with the law either change the law (work with their representative) or move. If you can't change the law, and you can't move, then I respectfully submit you're cooked. Try a little revolution, if you wish.

So if 3/4 of society favors executing homosexuals...then executing them wouldn't be cruel and unusual punishment?

In a theoretical United States in which homosexuality is a crime and capital punishment is not considered a "cruel and unusual punishment" for that crime, it would not violate the 8th Amendment. That does not mean that you and I, as outsiders to that theoretical society, cannot consider it immoral--just as we consider it immoral that slavery was not unconstitutional for many years after the Constitution was ratified.

What other paradigm do you suppose we should use to interpret the 8th Amendment? Who determines what is "cruel and unusual punishment" if not the consensus of society?

Eric,

If the consensus of society was that the second amendment doesn't apply to individuals but only to state militias, would it be wrong for the Supreme Court to say that it does so apply?

When the Supreme Court ruled against segregation and against limitations on interracial marriage, it seems they did so against societal consensus that those things were OK. I know that many conservatives objected to those rulings but I think they were correct.

Also, it is possible that my view on this SC opinion represents an extra-Constitutional opinion based on my moral objections to the death penalty. However, conservatives are subject to the same weakness. Consider that the Florida legislature's attempt to intervene in the Terri Schiavo case was clearly unconstitutional. Yet, the great majority of conservatives, especially Christians, looked the other way because they supported the objective. If the Supreme Court had upheld state bans on abortion in 1973, few conservatives would have cared what the legal reasoning was.

I agree with your last comment in its entirety, Joel. The Schiavo case, by the way, has made me very glad I'm not a Florida legislator.

So if 3/4 of society favors executing homosexuals...then executing them wouldn't be cruel and unusual punishment?

It violates the principle that the severity of punishments should not exceed the severity of the crimes for which they are prescribed. I do not know if the legal term "cruel and unusual punishment" specifically includes that principle. I know it proscribes certain types of punishment (like drawing and quartering), but I do not know if - or how thoroughly - it sought to enshrine the "eye for an eye" legal ethic that capital sodomy criminalization violates.

I don't disagree with my post, but I do think I painted with an over-generalized brush to denounce all judicial review.

You denounce some judicial review? Sorry, but it is fairly obvious that "judicial review" was considered part of "judicial power" when the US constitution was written, as should be clear from the Federalist Papers regarding the Judicial Department (FP 78 and others). They didn't use the term, but the concept was there, long before Marbury vs Madison.

Good point raj, but a lot of folks don't now think nor did they then think that the SC was the final arbiter. Our history hasn't been that way either (Lincoln, for instance). Those in favor of a consolidated country were always in favor of every centralizing feature but the consolidators were ever the enemies of free men.

I find the ruling very good. Argumentation of Justice Kennedy is very impressing and convincing to me. Apart from that, a judge is a man to judge, to decide, not just read laws and be pleased of himself. If justice Scalia doesn`t want to take responsibility and wants sleep well, live without problems, going fishing and smile at water thinking - "I don`t care, that`s the law", he should consider changing the job. Maybe a postman? Clear conscience, healthy work :-).

Scalia is a hypocrite and so are his apologists. They applaud those personal judgments that suit them, and excoriate those who make personal judgments that don't suit them.

In my experience, "conservative" pretty much equates with "bad person". They're the sort who exploit loopholes to avoid their responsibilities, frequently lie to their spouses, family, and friends, tell racist and sexist jokes or privately harbor sexist and racist beliefs, and are generally sociopathic. Some of these sociopaths are quite clever, and are quite good at crafting arguments justifying their bad behavior and bad ethics, but as Lincoln pointed out, even if you call a tail a leg, a dog still only has four legs.